# Parkman v. Bowdoin

> U.S. Circuit Court for the District of Massachusetts · May 15, 1833 · 18 F. Cas. 1213

URL: https://www.frixlaw.com/law-library/cases/8635549

## Case

- **Full name:** PARKMAN v. BOWDOIN
- **Court:** U.S. Circuit Court for the District of Massachusetts
- **Decided:** May 15, 1833
- **Citations:** 18 F. Cas. 1213; 1 Sumn. 359
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Story
- **Judges:** Story
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

STORY, Circuit Justice.
The sole question arising under the special verdict is, whether James Bowdoin, the grantor, was at the time of the conveyance seised in fee tail of the estate in controversy. If so, then, under the statute of Massachusetts, of the 8th are many authorities to this effect in cases analogous to the present. In Hughes v. Sayer, 1 P. Wms. 534, the master of the rolls said, that the word “children,” when unborn, liad been in case of a will construed to be synonymous with "issue,” and therefore would in a will create an estate tail. In Davie v. Stevens, 1 Doug. 321 , the devise was of the fee simple and inheritance to W. S., to him and his child or children for ever; and if he happened to die before twenty-one years of age, then devise over. Lord Mansfield, in delivering the opinion of the court, said: “The words, ‘child’ or ‘children,’ are to the full as restrictive, as if the testator had said, ‘and if my sou die without heirs of his body.’ To give the father a fee, would be to strike these words out of the will. They must operate to give an estate tail, for there were no children, bom at the time, to take an immediate estate by purchase. The meaning is the same, as if the expression had been, ‘to A and his heirs,’ that is to say, his children or his issue.” Ginger v. White, Willes, 348, Hodges v. Middleton, 2 Doug. 431 , and Doe v. Perryn, 3 Term R. 484, point in the same direction. In this last ease, Mr. Justice Buller said, “children” and “issue,” in their natural sense, have the same meaning. In Wood v. Baron, 1 East, 250, the devise was to the testator’s wife for life, and after her death to her daughter A, as a place of inheritance to her and her children or her issue for ever. And if she should die, leaving no child or children, then devise over. At the time of making the will, the daughter had a child. The ■court nevertheless held, that the daughter took an estate tail; and Lord Kenyon said, that if the words were construed to give the ■daughter a fee simple, the devise over, as an executory devise, would be too remote, being after an indefinite failure of issue. In Seale v. Barter, 2 Bos. & P. 485, the devise was to the testator’s son A, and his children lawfully begotten; and for default of said issue to his daughter B, and her children lawfully to be begotten; and for default of such issue, to his son and daughter equally between them. At the time of this will, the son had no child, and his daughter was unmarried. . The court held that the son took an estate tail; and the reasoning of Lord Alvanley, in giving the opinion of the court, is very cogent in its application to the present case. In Broadhurst v. Morris, 2 Barn. & Adol. 1, the devise was to his daughter A for life; and at her decease to her husband for life; and at his decease, to his grandson W and his children lawfully begotten for ever; but in default of such issue, at his decease to his grandson A, his heirs and assigns for ever. The court held, that W took on estate tail. This case is nearly identical with the present in its leading features.
There is a very late case, which is stronger than the present. It was a devise to trustees of all the testator’s real estate, to permit his daughter to take the rents and profits, or to sell, &c., if occasion required; also to settle on any husband she might take, for life, should he survive her. But should she have a child, to the .use of such child from and after his daughter’s decease. Should none of these cases happen, after his daughter’s decease devise over. It was held, that the daughter took an estate tail, the daughter having no child at the making of the will and the testator's death. And Bifield’s Case, cited in 1 Vent. 231, was relied on, where “son” was held to be nomen collectivum, as “child” was here. Doe v. Davies, Mich. T. K. B. 1832; 4 Barn. & Adol. 43, 1 Law J. K. B. (1832) 244. See. also, Sonday’s Case, 9 Coke, .127. It is plain, then, that upon authority there is no difficulty in the present case, in construing the word “children” to be a word of limitation, and not of purchase, if the sense of the devise requires it. And in reason it must be so also; for the intention of the party, when discovered, must in a will control any technical sense of particular words; since the intention, if legal, is universally admitted to govern. The strong ground, upon which the word “children” has been construed to be a word of limitation, •when there is a devise over on failure of children, is, that otherwise, if there should be children bom, who should die during the life-time of the parent, leaving issue, the latter would not take. This consideration has been always held decisive; and it strictly applies to the present ease. Wyld v. Lewis, 1 Atk. 432; Doe v. Perryn, 3 Term R,. 484; King v. Burchall, 4 Term R. 296, note; Tenny v. Agar, 12 East, 253, 261; and Doe v. Webber, 1 Barn. & Ald. 713, 720, — are in point. See, also, Hawley v. Northampton, 8 Mass. 3, 41 .
The superadded words, “in fee simple,” in the original devise, so far from impugning, absolutely require this construction. They demonstrate, that the devise over is not to take effect, while there are any issue of James in esse. “In fee simple” means the same as to their heirs and assigns; and the devise over being to a collateral heir, these words are necessarily cut down to heirs of the body, if the devise over is to take effect only upon an indefinite failure of issue; and that it is so, is established by all the authorities. The universal rule is, that a failure of children, issue, or heirs of the body, means an indefinite failure of issue, unless there are other qualifying words, limiting the contingency to the death of the parent, which there certainly are not here. See Denn v. Shenton, Cowp. 410; Ide v. Ide, 5 Mass. 500 ; Lillibridge v. Adie [Case No. 8,350], The will, therefore, read according to the real meaning of the terms, is, to James and the heirs of his body lawfully begotten, and their heirs for ever; and if he should die without such heirs of his body, then devise over. This- is precisely the devise in Denn v. Shenton, Cowp. *1217 410, where the devise was held a fee tail, with a remainder to the second devisee. Under this aspect of the ease, there is this additional reason for constrains the devise to James a fee tail, that otherwise a- devise over, (as has been already said,) being upon an indefinite failure of issue, would be utterly void for remoteness. Indeed, the argument at the bar surrenders the case, if the contingency is not to be limited to the decease of James. Not a single case has been cited at the bar, in which under similar circumstances a devise has been held to be upon such a limited contingency. Richardson v. Noyes, 2 Mass. R. 56 . is distinguishable, (if indeed that case can be supported as law,) tor there were words giving the estate to the survivor, &c., which were thought to indicate, that the devise over was to take effect at the death of A, without any children then living. In Doe v. Webber, 1 Barn. & Ald. 713, the devise was to the testatrix’s niece A, her heirs, executors, administrators, and assigns for ever; which would clearly pass a fee simple to her. And the devise over was, in case A shall die, and leave no child or children, then to her niece B, to her and her heirs for ever, paying £1000 unto the executor of her niece A, or to such person as she by her last will shall direct. The court held, that the devise over did not cut down the fee to a fee tail; but upon the whole language, the words, “child'’ or “children,” were to be construed issue; and it was an executory devise over, upon A’s dying without leaving any issue at her death. The court laid great stress on the legacy of £1000 being paid in a proximate and not in a remote event. In that case, also, there were no such words, as “children,” interposed in the first devise, as there are in the present. Porter v. Bradley, 3 Term R. 143, turned upon the peculiar force of the words, “leaving no issue behind him.” So that in the present case there is an evident necessity of construing the words “children,” &e., to mean issue or heirs of the body. If so. they are words of limitation, and not of purchase; and the estate of James is a fee tail, and not a fee simple. For this construction several reasons may be given. First, because the children were not in esse at the time of making the will; and therefore they could not take an immediate estate. Secondly, because otherwise, if children were born, and died in the life-time of James, leaving issue, they would be excluded: whereas the words, “fee simple,” show, that an interest was intended to the issue. Thirdly, because if “children” in the devise were to be construed to mean, not the whole class of issue, but strictly children of James, deseriptione person-arum. living at his death, then the devise over would be defeated, if James should die leaving children, who should afterwards die without issue, which plainly could not have been intended. Fourthly, because if the devise over be. as in my judgment it is, upon an indefinite failure of issue, then, as an executory devise, it is too remote and void; but as a remainder after a fee tail, it is good. And I would add. that it is a clear rule of law, that every limitation is to be construed to take effect by way of remainder, if it may, and not by way of executory devise, unless it be unavoidable to carry the intention into effect. My judgment is, that the words and the intent of the testatrix manifestly require the estate in James to be construed a fee tail, with a remainder to George. It is a case as free from doubt, on this point, as the will of an unskilful person well could be. See Lees v. Mosley, 1 Younge & C. Exch. 589, 606 to 609.
The consequence is, that, upon the special verdict, judgment must pass for the defendants.
Wild’s Case is always referred to with approbation. See Buffar v. Bradford. 2 Atk. 220; White v. White, Willes, 348; Wharton v. Gresham. 2 W. Bl. 1083; Cook v. Cook, 2 Vern. 545; Oates v. Jackson. 7 Mod. 430; King v. Melling, 1 Vent. 231; Hughes v. Sayer, 1 P. Wms. 534; Davie v. Stevens. 1 Doug. 321 : Hodges v. Middleton. 2 Doug. 430 ; Seale v. Barter. 2 Bos. & P. 485: Broadhurst v. Morris, 2. Barn. & Adol. 1.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8635549. Public record. Not legal advice.